Dover Realty, Inc. v. Butts County Bd. of Tax Assessors, A91A2011

• Decision Date: 30 January 1992
• Docket Number: No. A91A2011,A91A2011
• Parties: DOVER REALTY, INC. et al. v. BUTTS COUNTY BOARD OF TAX ASSESSORS.
• Court: Georgia Court of Appeals

Page 666

415 S.E.2d 666

202 Ga.App. 787

DOVER REALTY, INC. et al. v. BUTTS COUNTY BOARD OF TAX ASSESSORS.

No. A91A2011.

Court of Appeals of Georgia.

Jan. 30, 1992.

Reconsideration Denied Feb. 12, 1992.

William A. Fears, Jackson, for appellants.

George, Trammell & Bartles, William P. Bartles, Forest Park, for appellee.

BIRDSONG, Presiding Judge.

This appeal arises from a de novo appeal to the superior court from an ad valorem tax assessment for the year 1990. Motion by appellee to dismiss appeal was granted; appellant's motion to enforce settlement was denied. Held:

1. Factual assertions in appellate briefs and in briefs in the trial record and not otherwise supported by evidence of record cannot be considered on appellate review. Behar v. Aero Med Intl., 185 Ga.App. 845(1), 366 S.E.2d 223.

2. Appellants assert the trial court erred in denying their motion to enforce settlement. We disagree. The trial court, in support of its order, concluded "that the parties to this litigation did not enter into a settlement agreement resolving the issues raised in the instant tax appeal." Appellants argue that a certain letter contained in the trial record, signed by attorney Bartles and dated September 14, 1989, evidences the settlement agreement. The scope of this letter, corroborated in part by other evidence of record, reveals on its face that both the conversation, as therein memorialized, and the said "rectified" matter, referred to the "1989 Tax Assessment" rather than the tax assessment in 1990. We recognize that a legally effective compromise of a dispute is binding on the parties, that the law favors compromises, and that a promise made in extinguishment of a doubtful claim is sufficient to support a valid contract. Warren v. Jenkins, 190 Ga.App. 442, 443(1), 379 S.E.2d 19. Nevertheless, it is in those instances " ' "[w]here parties to litigation have entered into a definite, certain, and unambiguous settlement agreement, which is not denied, the trial court should make the agreement the judgment of the court, thereby terminating the litigation." ' " Id.; compare Kapiloff v. Askin Stores, 202 Ga. 292, 296, 42 S.E.2d 724. The record in this case does not establish the existence of a definite, certain, and unambiguous settlement agreement as to the matters at issue in this case. Appellants have the duty of showing error affirmatively by the record and this duty is not discharged merely by unsupported recitations in their brief. Armech Svc. Co. v. Rose Elec. Co., 192 Ga.App. 829, 830, 386 S.E.2d 709; Jenkins v. Bd. of Zoning, etc., 122 Ga.App. 412(2), 177 S.E.2d 204.

3. Appellants claim the trial court erred in granting appellee's motion to dismiss on the grounds appellants were not the real parties in interest, and therefore erred in concluding it lacked jurisdiction to consider the de novo appeal.

OCGA § 9-11-17(a) provides in pertinent part that "[e]very action shall be prosecuted in the name of the real party in interest.... No action shall be dismissed on the ground that it is not prosecuted in the name of the real party in interest until a reasonable time has been allowed after objection for ratification of commencement of the action by, or joinder or substitution of, the real party in interest...."

Appellant companies made admissions in judicio in their briefs before the trial court and this court (Brownlow v. City of Calhoun, 198 Ga.App. 710, 711, 402 S.E.2d 788; Time Ins. Co. v. Lamar, 195 Ga.App. 452(2), 393 S.E.2d 734) that subject real estate was owned by them on January 1, 1990, was conveyed thereafter to 3 Star Ltd., that the instant tax appeal involves 3 Star Ltd., and that 3 Star Ltd. technically is another corporation.

As appellants do not affirmatively argue or provide any citation of authority in their appellate brief in support of a contention that merely because they owned the property on January 1, 1990, they are the "taxpayer," within the meaning of OCGA § 48-5-311, legally entitled to file an appeal regarding the 1990 ad valorem taxes here at issue and are thus the real parties in interest, this specific issue is abandoned. Court of Appeals Rule 15(c)(2).

Appellants assert inter alia that this instant tax appeal in fact involves 3 Star Ltd., and that a misnomer occurred either on the trial court calendar, or when the county attorney filed an entry of appearance and filed his first interrogatories. Although a mere misnomer of a party in the pleadings is a defect which may be waived where the misnamed party is in fact the legally cognizable proper party in interest (Strauss Fuchs Org. v. LaFitte Invest., 177 Ga.App. 891, 894(2), 341 S.E.2d 873), the record in this case does not affirmatively establish that mere misnomer occurred. The trial judge found that the tax appeal was not timely filed by the true owner of the subject property. The record reflects that purported appeal of various tax assessments was filed on May 8, 1990, on Dover Realty Company letterhead stationery and signed by "Ben H. Dover, Jr. also agent for the following appeals." And the purported...